decided: October 6, 1977.
COMMONWEALTH OF PENNSYLVANIA
JOHN VAN WRIGHT, APPELLANT
No. 1529 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 0846, 0847 April Term, 1975.
Charles S. Lieberman, Philadelphia, for appellant.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result.
[ 249 Pa. Super. Page 452]
Appellant contends that the lower court erred in refusing to read his requested instruction on the issue of
[ 249 Pa. Super. Page 453]
alibi.*fn1 We agree and, therefore, vacate the judgment of sentence and grant appellant a new trial.
On March 12, 1975, Philadelphia police arrested and charged appellant and another man with robbery*fn2 and criminal conspiracy.*fn3 Appellant and his co-defendant were tried before a jury from January 13, 1976, through January 20, 1976. At trial, the complaining witness testified to the following version of events. On March 12, 1975, he went to a drug rehabilitation center at 3rd and Arch Streets in Philadelphia to watch a free movie. He remained at the center from approximately 6:00 p. m. until about 8:00 p. m. While there, he saw appellant and his co-defendant in the lobby before the movie and during an intermission. When he left the center, he proceeded west on Arch Street. At 6th Street, appellant and his co-defendant approached him from behind, and suggested that all three men walk together. The complaining witness agreed. As the three men walked west along Arch Street, they engaged in light conversation. When the group reached 11th Street, the co-defendant suggested that they buy a bottle of wine. The complaining witness bought a bottle of wine at a state liquor store at 12th and Arch Streets. The three men then proceeded
[ 249 Pa. Super. Page 454]
east on Arch Street, entered a parking lot, then exited onto Cuthbert Street, near 11th Street. Here, appellant offered the complaining witness a drink of wine. He accepted and then said he had to leave. Before he could leave, appellant grabbed him and threw him against a wall. Appellant threatened to cut him with a knife if he resisted. The co-defendant removed about $50 and some cigars from the victim's pockets. Appellant and his co-defendant then fled, and the victim ran to the intersection of Filbert and 11th Streets where he notified a police officer he had been robbed.
Two police officers testified for the Commonwealth. While driving north on 13th Street, the officers received a bulletin about the robbery over the police radio at 8:10 p. m. The bulletin reported that two Negro males, one very tall and one very short, both wearing levis and dark jackets and both about twenty years old, had committed the robbery, at knifepoint. The policemen saw appellant and his co-defendant standing outside the Terminal Bar, located one or two stores north of the northeast corner of 13th and Filbert Streets. Appellant and the co-defendant attempted to flee, first by running east on Filbert Street and then, when the police car followed this route, by reversing their direction. The police ultimately apprehended the two suspects at the northeast corner of 13th and Filbert Streets.
The defense called a bartender who worked at the Hedgeman Beef and Ale Bar, located at 1229 Filbert Street, on the night of March 12, 1975. The bartender testified that appellant and his co-defendant entered the bar "around 7:30, something like that." The bartender asserted three times that they stayed "about a half hour, twenty minutes." They left "about five or ten minutes" before they were arrested. According to the bartender the bar is two doors away from the scene of the arrest and two blocks away from the scene of the robbery.*fn4
[ 249 Pa. Super. Page 455]
In the lower court's chambers, appellant's counsel requested that the lower court give the following instruction to the jury:
"40. The Commonwealth has a burden of proving beyond a reasonable doubt that the crime of robbery and conspiracy was committed, and that the defendant committed or participated in the commission of it. Defendant has offered evidence of an alibi, that is, he offered evidence to prove that he was not present at the place where the crime was committed but was in the Hedgeman Bar. Defendant's evidence in support of his alibi, either alone or together with any other evidence in the case may be sufficient to raise a reasonable doubt of defendant's guilt. If you have a reasonable doubt of defendant's guilt you must, of course, acquit him."
The lower court refused to give this instruction and gave the standard charges to the jury on assessing credibility and on the Commonwealth's burden of proving guilt beyond a reasonable doubt.
On January 20, 1976, the jury found appellant and his co-defendant guilty of robbery and criminal conspiracy. After denying post-verdict motions, the lower court sentenced appellant and his co-defendant to identical terms of seven and one-half-to-twenty years in a state correctional institution on the robbery count and five-to-ten years to run consecutively on the conspiracy charge. This appeal followed.*fn5
Appellant contends that the lower court erred in refusing to read his requested instruction on the issue of alibi. In
[ 249 Pa. Super. Page 456]
heretofore, so long as he leaves the jury free to find its own true verdict."*fn6
A defendant is not entitled to an instruction under Commonwealth v. Bonomo, supra, unless there is some testimony in the record, introduced by either the defense or the Commonwealth, raising the possibility of an alibi defense. "Alibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party." Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963); Commonwealth v. Warrington, 230 Pa. Super. 332, 326 A.2d 427 (1974); Commonwealth v. Wongus, 219 Pa. Super. 149, 280 A.2d 666 (1971). When determining whether an instruction on alibi is required, the trial court should view the evidence regarding a possible alibi in the light most favorable to the defendant. Commonwealth v. Bonomo, supra; Commonwealth v. Larue, 158 Pa. Super. 219, 44 A.2d 535 (1945); Commonwealth v. Stewart, 106 Pa. Super. 388, 162 A. 344 (1932). This is true because at all stages of a trial, a defendant is entitled to the presumption of innocence. Commonwealth v. Bonomo, supra. This presumption cannot be fully honored if the trial court refuses to give an alibi instruction when a defendant's evidence, if believed, would establish its applicability.
In the instant case, the bartender's testimony viewed in the light most favorable to the appellant, made it impossible for appellant and his co-defendant to have participated
[ 249 Pa. Super. Page 458]
in the chain of events, depicted by the complaining witness, leading up to the robbery. According to the complaining witness, appellant and his co-defendant watched a movie starting at 6:00 p. m. at the drug rehabilitation center at 3rd and Arch Streets on March 12, 1975. The complaining witness testified that appellant and his co-defendant joined him at 6th and Arch Streets sometime around 8:00 p. m. and accompanied him until they robbed him shortly before 8:10 p. m. However, viewing the bartender's testimony in the light most favorable to the defendant, appellant and his co-defendant were sitting in the Hedgeman Beef and Ale Bar at 1229 Filbert Street during the time that this sequence of events allegedly occurred and did not depart until shortly before their arrest. Even if the alleged robbery occurred only two blocks away, appellant and his co-defendant could not have committed the offense if they were sitting in the Hedgeman Bar at that time. Therefore, the bartender's testimony placed the question of alibi in issue, and appellant was entitled to have his requested instruction read to the jury pursuant to Commonwealth v. Bonomo, supra.
[ 249 Pa. Super. Page 459]
The lower court believed that a specific instruction on alibi need not be given because the testimony of the bartender and that of the victim differed so radically. According to the lower court, the sole issue was credibility; if the jurors believed the bartender's testimony, they would, perforce, acquit appellant and his co-defendant.*fn7 However, a general charge on assessing the credibility of witnesses is not sufficient to dispel the confusion that is likely to exist when the defendant offers evidence of an alibi. "When affirmative proof, best known by the defendant himself, is offered, a likelihood exists that jurors would look to that proof for persuasion of its truth. But the correct approach Page 459} is that such proof need only raise a reasonable doubt in the jurors' minds as to whether defendant was present at the scene." United States v. Booz, 451 F.2d 719, 723 (3rd Cir. 1971). (Emphasis supplied) In short, the jury did not need to believe the bartender's testimony in order to acquit. Acquittal would be compelled if the bartender's testimony raised a reasonable doubt in the mind of the jury as to appellant's location at the time of the events in question. The trial court should have so instructed the jury.
When evidence of an alibi is introduced, a specific alibi instruction should also be given in order to refresh the memory of the jury about crucial conflicts in testimony. Commonwealth v. Bonomo, supra, commands as much: "It will be the duty of the trial judge to carefully instruct the jury as to the relationship of the evidence of the prosecution and the evidence of the defendant as each bears upon the essential elements of the crime charged." 396 Pa. at 231-32, 151 A.2d at 446. In the instant case, the trial court in its instructions to the jury did not even allude to the conflict between the testimony of the bartender and that of the victim. Because the lower court failed to properly charge the jury in accordance with Commonwealth v. Bonomo, we vacate the judgment of sentence and grant appellant a new trial.
Judgment of sentence vacated and a new trial granted.